Public Has Right to Access Summary Judgment Filings Even When Summary Judgment Motion Was Never Decided

From U.S. ex rel. Oberg & Camoin v. Nelnet, Inc., decided yesterday by the Fourth Circuit, in an opinion by Judge Julius Richardson, joined by Judge Barbara Milano Keenan and District Judge Elizabeth Dillon (W.D. Va.):

In 2007, Jon Oberg filed a lawsuit under the False Claims Act against various student-loan companies, including Nelnet, Inc., Nelnet Education Loan Funding, Inc., Brazos Higher Education Services Corporation, and Brazos Higher Education Authority, Inc. (together, Nelnet and Brazos). Oberg alleged that the companies submitted false claims to the Department of Education to inflate their loan portfolios eligible for interest subsidies. The parties consented to a magistrate judge deciding the case….

The parties filed various documents under seal, and he case ultimately settled while summary judgment motions were pending. Then, “[o]n March 31, 2023, Michael Camoin—a documentary filmmaker who covers the student-loan industry—filed a pro se letter in the district court requesting access to the materials that Oberg filed under seal in connection to his opposition to summary judgment.” The Fourth Circuit ruled that the First Amendment provided a presumptive right of access to the documents:

[T]he First Amendment protects the right to access summary judgment motions and documents “filed in connection with” those motions. We began by recognizing that the First Amendment does not prohibit a district court from limiting the disclosure of products of pretrial discovery. But we explained that “[o]nce the documents are made part of a dispositive motion, such as a summary judgment motion, they ‘lose their status of being raw fruits of discovery.’” Unlike discovery, “summary judgment adjudicates substantive rights and serves as a substitute for a trial.” And because the public has a First Amendment right to attend criminal trials, we found that the public has an equivalent right to access documents filed in connection with civil summary judgment motions….

Nelnet and Brazos … argu[e] that the First Amendment right of access does not apply when a district court specifically holds that those documents played no adjudicative role in the proceedings.

But … [o]ur precedents are clear that the First Amendment right of access to summary judgment materials does not depend on judicial resolution of the summary judgment motion or judicial reliance on the documents in resolving the motion. Rather, … the First Amendment right attaches “[o]nce the documents are made part of a [summary judgment] motion” and no later. That is, once the documents are “filed in connection with a summary judgment motion in a civil case,” the “more rigorous First Amendment standard” must be satisfied before the public can be denied access….

The public has an interest in ensuring basic fairness and deterring official misconduct not only in the outcome of certain proceedings, but also in the very proceedings themselves. We protect that interest by granting the public access to those proceedings. And a “necessary corollary” of the right to attend protected proceedings is the ability to access documents submitted in conjunction with those proceedings, for only then can members of the public truly understand what has occurred therein.

Nelnet and Brazos argue that because the original case settled before a summary judgment ruling, the documents are of little value in understanding what happened in the litigation. But it is up to the public to decide “why the case was brought (and fought)[ ] and what exactly was at stake in it.” And the very arguments made in this appeal show how access to these sealed documents could help answer those questions. Nelnet and Brazos argue that the original parties settled in response to the district court’s finding that Oberg failed to preserve certain evidence. Camoin, by contrast, notes that they may have settled because of the arguments and evidence presented in the summary judgment proceedings. But without access to the sealed materials, it is impossible for the public to know which view is correct. So irrespective of whether a district court ever resolves a summary judgment motion, the public has a presumptive First Amendment right to access documents submitted in connection with it….

The circuit remanded for the district court to decide “whether maintaining the seal on the requested documents is ‘necessitated by a compelling government interest[ ] and … narrowly tailored to serve that interest,’” which would overcome the First Amendment right of access.

Nandan M. Joshi of Public Citizen Litigation Group represents Camoin.

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